History of the Appeal
Andrew Jarecki begins work on a film project which eventually becomes Capturing the Friedmans.
After thirteen years, and being denied parole four times, Jesse Friedman is released from prison to five years of parole supervision.
Capturing the Friedmans premiers at the Sundance Film Festival.
Capturing the Friedmans premiers to audiences worldwide.
Jesse Friedman beings preparing his first effort at appealing his conviction after 15 years. Jesse’s attorney, along with a volunteer staff team effort, spend months collecting and organizing the newly discovered evidence of police misconduct, prosecutorial misconduct, student recantations, and exonerating evidence into a formal court submission.
Change of Venue motion was denied, so the case remains, and will be heard in the same Nassau County which convicted Jesse years earlier.
January 9, 2004
After 16 years, Jesse Friedman filed what is known as a 440 Motion with the Nassau County District Court. A 90 page Memorandum of Law in Support of Motion to Vacate Conviction with legal arguments, 13 affidavits in support of the motion, and 900 pages of annexed exhibits, fulfilled a long hoped for opportunity for Jesse to prove his innocence.
April 20, 2004
Jesse Friedman files a judicial conduct complaint against Judge Abbey Boklan with the NYS Commission on Judicial Conduct, based upon violations of New York Criminal Procedure Law, New York State Rules Governing Judicial Conduct, as well as conduct unbecoming of a jurist.
Court procedure permits the District Attorney to file an opposition motion, which the defense is permitted refute. Only then does the matter go before the judge. The D.A. first asked for 60 days to reply to Jesse's motion. The return date was set for May 5, 2004. However, the D.A. requested additional disclosure of interviews conducted by Andrew Jarecki. The judge in Nassau County issued a subpoena in clear violation of Jarecki's journalistic freedoms to protect his sources. The D.A. additionally requested and was granted an indefinite continuance pending the resolution of this subpoena. Jesse's defense team was held in limbo unable to begin working on a reply to the D.A.'s opposition motion. This was the first of many years worth of maneuvering on the part of the D.A.’s office delaying any resolution to the appeal.
Attorney Ron Kuby agrees to represent Jesse Friedman and his on-going appeal efforts. A notice of appearance is filed with the court and a five week extension is requested and granted for Kuby to review previously submitted case material, and to file a supplemental memorandum of law.
After filing a judicial conduct complaint against Judge Abbey Boklan with the NYS Commission on Judicial Conduct, the complaint was dismissed with no reprimand admonished against the judge.
October 18, 2004
Attorney Ron Kuby files a supplemental brief to the 440 Motion. After reviewing the memorandum of law which was filed in January he felt it necessary to address at least one legal argument which he felt was neglected in the original filing.
The Opposition Motion was finally received from the D.A.'s office after nine months. The District Attorney’s reply basically argued that the appeal motion was “frivolous” both on matters of law, and on matters of fact. Even when faced with overwhelming evidence pointing toward law enforcement, prosecutorial and judicial misconduct, and affidavits clearly exonerating the defendant, the District Attorney's office opposes any rehearing of what they consider a closed case.
Ron Kuby files a supplemental brief to the 440 Motion. After reviewing the memorandum of law which was filed in January he felt it necessary to address at least one legal argument which he felt was neglected in the original filing.
Two years from the time of the initial filing of the appeal, a decision was finally handed down by the same judge in Nassau County who 18 years earlier had set Jesse’s bail at $500,000. The motion was denied in its entirety. The judge denied the appeal with a simple four page decision.
- The judge did not request any in-court appearances or testimony from Jesse Friedman, any of the witnesses, or the attorneys for oral arguments or questioning.
- The judge denied all discovery requests of the police and District Attorney files on the case.
- The judge declined to even make a review the case-file in camera in private chambers of the police file to determine the manner and method of the police investigation.
Lower court's ruling appealed to the Appellate Division, arguing prejudice and improper legal basis for the denial of Jesse's appeal motion.
The Appellate Division declined to review the lower-court's ruling.
Paperwork was filed with the Court of Appeals requesting a hearing before the state's highest court.
The Court of Appeals declined a request for a review of the lower court's decision.
Ron Kuby filed a Habeas Corpus petition with the federal judiciary arguing Jesse's federal constitutional rights were violated at the time of his pending trial, and that the lower court's ruling was contradictory to current federal case-law standards.
Jesse Friedman completes five years of onerous restrictive parole supervision, thereby completing his 18 year obligation to the Court for his criminal sentence.
January 2, 2007
Jesse Friedman marries Elisabeth Walsh on the most joyous of occasion!
Judge Joanna Seybert issues a written decision granting a hearing in federal district court. Three primary issues had been raised, each relating to the withholding of information which should have been disclosed prior to trial regarding the nature of the evidence against Jesse. The withholding of this information was a Constitutional violation:
- Perhaps 100 children were present during the computer classes (at the same time as the alleged abuse was going on). These children who were interviewed by the police reported, "I was there and nothing happened." This information was never disclosed to the defense.
- There was a crucible of suggestion, intimidation, and falsification on the part of the police. The prosecution failed to disclose exculpatory evidence showing that the police utilized aggressive suggestive and coercive interrogation techniques they knew, or should have known, would yield false allegations.
- The use of hypnosis during therapeutic sessions resulted in a situation of potential "implanted memory" or "repressed memory syndrome" and should have been disclosed to the defense at the time.
On the first two issues, Judge Seybert ruled the statute of limitations had expired and denied our petition. It is worthy to note that she did not rule however that the issues were merit-less, merely that they were time-barred. However, on the third issue, relating to hypnosis, Judge Seybert ordered a hearing to determine to what extent hypnosis was used when questioning children.
August 1, 2007
A motion for discovery relating to the use of therapy, and specifically the use of hypnosis, as a method of eliciting testimony from children, is filed with the court. “Petitioner seeks leave of the Court to request the production of all material, documents, records, recordings, notes, memoranda, logs, files, forms, etc. in the possession or control of the Office of the District Attorney, Nassau County regarding the use of hypnosis, visualization, relaxation, group therapy, individual therapy, or substantially similar methods on any of the complainants, potential complainants, or witnesses in the prosecution and/or investigation of Jesse Friedman.
The Nassau County District Attorney's office filed a revised reply to our Habeas petition, arguing that our issue relating to the use of hypnosis was "time barred". Interestingly, Judith Sternberg (the ADA assigned to the case filed these papers over a year later herself, and without the permission of Judge Seybert.)
The judge ordered both parties to appear in court on October third for oral arguments and to settle this "timeliness" matter. Meanwhile our motion for an Order of Discovery was being held in abeyance pending resolution of the district attorney’s attempts at trying to oppose our Habeas Corpus petition after she unexpectedly lost her arguments.
October 3, 2007
The first time all parties (the district attorney’s repetitive, defense council, and Jesse) appear in court together before an impartial judge in the twenty years since Jesse’s arrest. Read transcript here.
January 4, 2008
Judge Seybert's second Decision regarding the appeal was not in Jesse’s favor. The judge denied the motion for discovery, and sided with the prosecution regarding timeliness. The final ruling from the judge can be simplified as saying Jesse’s appeal papers were filed 13 days too late.
At no point in either of the two written decisions from Judge Seybert did she ever indicate that the appeal was without merit, groundless, unfounded, or factually unsupported. Her decisions focused strictly on a technical matter relating to the counting of days on a calendar. There is a special statue of limitations under a 1996 law known as AEDPA, “requires individuals in custody through a state court judgment to file a petition for a writ of habeas corpus within one year of the date that the judgment became final.”
The ruling had no basis on the content of the legal arguments, only on "the date on which the factual predicate of the claim presented could have been uncovered through the exercise of due diligence." Federal Law says, "The limitations period begins on the date on which petitioner was on notice of the facts which would support a claim, not from the date on which the petitioner has in his possession evidence to support his claim." The prosecution argued that when Jesse saw "Capturing the Friedmans" for the first time, and "learned" that at least one of the complainants said his recollection of abuse was the result of hypnosis was the time he should have filed his appeal papers. His lawyers counter-argument was that seeing an anonymous person cloaked in shadow about whom there is no identifying information is as much akin to "being on notice of a fact" as receiving an anonymous letter, with no return address, reading simply, "I was in the computer classes and it was only after being in therapy did I remember that I was sexually abused." The appeal was filed once the filmmaker began sharing specific information with his attorney, and actual source material from the film, along with contact information for the people in shadows. But federal law says a defendant has 365 days from the time of discovering new evidence to file an appeal, not 366, and not 378. For years of legal wrangling all regarding days on a calendar instead of any meaningful consideration of the factual evidence.
Request for Certificate of Appealability to the United States Court of Appeals is sought from District Court Judge Seybert.
January 24, 2008
District Attorney files opposition to request for Certificate of Appealablity
July 22, 2008
Certificate of Appealablity is granted by Judge Seybert saying, “Although the Court denied Petitioner’s application as time-barred, the Court found that reasonable jurists could have found the issue of timeliness to be debatable. Because the Court finds that Petitioner has made a substantial showing of the denial of a constitutional right, the Court grants Petitioner a certificate of appealability.” thereby opening the door for Jesse Friedman to have his case heard by an extraordinary panel of federal judges.
November 19, 2008
Memorandum of Law filed with the United States Second Circuit Court of Appeals on Order of Writ of Habeas Corpus.
Plaintiff and Respondent parties appear in court for oral arguments before the Second Circuit Court of Appeals in New York City.
July 20, 2009
Supplemental motion arguing “Actual Innocence” submitted to Second Circuit Court of Appeals.
July 29, 2009
District Attorney Supplemental Brief in opposition to actual innocence.
Second Circuit Court of Appeals denied motion relating to Brady material, but issued a scathing rebuke of the manner in which the case was handled stating, "The record here suggests a reasonable likelihood that Jesse Friedman was wrongfully convicted." And, “While the law may require us to deny relief in this case, it does not compel us to do so without voicing some concern regarding the process by which the petitioner’s conviction was obtained.”
The Second Circuit concluded with a strong recommendation to the current Nassau County District Attorney saying, "Only a re-investigation of the underlying case or a development of a complete record in a collateral proceeding can provide a basis for determining whether petitioner's conviction should be set aside." Shortly thereafter District Attorney Kathleen Rice announced the commencement of a re-investigation of the conviction of Jesse Friedman.
District Attorney Kathleen Rice announced appointment to the Friedman Review Panel.
March 2, 2012
Submission of Jesse Friedman in the Matter of an Inquiry into the Criminal Conviction of Jesse Friedman, Amicus Brief submitted to Review Panel questioning the legal standard forming the basis of the conviction review committee.
May 17, 2012
Jesse appeared before the Review Panel of experts advising the D.A. with regards the reinvestigation, read a prepared statement and answered all questions.
Submission made to the Review Panel on March 2012 regarding the "Standard of Review".
Film makers Andrew Jarecki and Marc Smerling present their findings of newly discovered evidence of police, prosecutorial and judicial misconduct along with recantations and statements from former computer students proclaiming never having witnessed any sexual abuse during computer classes.
November 18, 2012
The National Center for Reason and Justice hosts a town hall meeting in Great Neck presenting newly discovered evidence of Jesse’s innocence.